Constructing Human Rights from Soft Law: The Swedish Journey Towards Protection Against Unlawful Discrimination

Abstract

This article traces the Swedish journey with respect to the treatment of discrimination issues. The current Swedish parliamentary understanding of protection against unlawful discrimination as a fundamental human right, can be seen as beginning in a period of no regulation, going over to a soft law approach (on both international and national levels) and then to a progressively hard law approach. This journey can be seen as having been completed by the Swedish parliament but arguably not yet whole-heartedly by the Swedish courts. This change in treatment was brought about mainly due to external forces, namely EU membership and the Europeanization of discrimination protections. Coming to the current Swedish parliamentary perception, that protection against unlawful discrimination on the basis of sex, transgender identity and expression, ethnicity, religion or other belief, disability, sexual orientation or age, is a fundamental human right, has been neither a self-evident, nor a linear, path in Swedish discrimination law. The point at which this parliamentary perception is given the same effect by the Swedish courts can be seen as the end of this journey.

Keywords: human rights, discrimination, labour law, self-regulation, Swedish model